Legal thoughts, since 2005.

Web/Tech

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from October 2018:

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Texas Bar on lawyers seeking legal advice from other lawyers in online forums

Lawyer-only online forums and listservs are commonplace. Often these forums are hosted by bar associations, but that’s not always the case. Facebook, LinkedIn, and Reddit private groups are often created by lawyers for lawyers. Because these groups are typically gated communities, lawyers can comfortably discuss a multitude of issues. Referral sources are sought, trending legal issues are mulled over, and opinions are solicited regarding issues arising in a lawyer’s practice.

It’s the last topic that was addressed in a recent Texas ethics opinion. One issue considered in Opinion 673 was whether it is ethical for lawyers to seek advice for the benefit of their clients from other lawyers outside of their firm in an online discussion group.

At the outset, the Professional Ethics Committee for the State Bar of Texas acknowledged that informal consultations with other attorneys occur often, both online and offline: “It is common for lawyers to have informal lawyer-to-lawyer consultations touching on client-related issues. Informal consultations may occur in a variety of situations, such as when a lawyer poses questions to a speaker at a CLE seminar, when a lawyer seeks advice from members of an online discussion group, or when a lawyer solicits the insight of a trusted mentor. Informal consultations allow lawyers to test their knowledge, exchange ideas, and broaden their understanding of the law, with the realistic goal of benefiting their clients.”

However, the Committee emphasized that when doing so, it’s important to have a full understanding of your ethical obligations, including the duty of client confidentiality. Importantly, not all consultations will involve a discussion of confidential information, such as “asking general questions about a particular statute, rule or legal procedure.”

Of course, that’s not always the case, and on occasion, an attorney may “consider it necessary to provide a certain amount of factual context in order to frame the issue and obtain useful feedback.” In those cases, whether the consultations occurs online or off, a lawyer must tread lightly, and be fully aware of the ethical implications.

That being said, the Committee explained that, with limitations, doing so is permissible, even in the absence of consent from one’s client: “It is the opinion of the Committee that Rules 1.05(d)(1) and (2) allow a lawyer to reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client.”

The Committee provided the following tips to assist lawyers in walking the fine line between a permissible consultation and one that impermissibly disclosed client confidences. First, it’s important to limit the “consultation to general or abstract inquiries that do not disclose confidential information relating to the representation.” If that’s not possible, it’s permissible to “reveal a limited amount unprivileged client information in a lawyer-to-lawyer consultation, without the client’s express consent, when and to the extent that the inquiring lawyer reasonably believes that the revelation will benefit the inquiring lawyer’s client in the subject of the representation.” However, when doing so, it’s necessary to use “a hypothetical that does not identify the client,” otherwise doing so is unethical “if it is reasonably foreseeable that the disclosure of the information will harm, prejudice or embarrass the client.”

So if you’ve ever wondered about the parameters of interacting ethically online in lawyer forums when discussing client hypotheticals, then some of your questions have been answered by this opinion. Not surprisingly, online discussions aren’t treated differently than offline discussions for ethics purposes. After all, as I always say, the online is simply an extension of the offline. That being said, online interactions are much more easily recorded for posterity’s sake - and for review by an ethics committee. The lesson being - keep that in mind when engaging online and err on the side of caution when seeking consultation regarding issues that may involve client confidences.

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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ABA on disaster preparedness and ethical obligations

In the wake of Hurricane Florence, disaster preparedness is on everyone’s minds. For lawyers affected by disasters, natural or otherwise, there are unique concerns given the nature of the services that they provide. Statute of limitations and other deadlines must be met despite the weather, as do clients’ needs and concerns. The drumbeat of the law stops for no one which is why lawyers need to take steps to ensure that their law office will continue to run smoothly even after a natural disaster hits.

For lawyers who are unsure how to go about doing this, an opinion recently issued by the American Bar Association provides some guidance. In Formal Opinion 482, the ABA Standing Committee on Ethics and Professional Responsibility addressed lawyers’ ethical obligations in the face of a disaster and provided advice for lawyers seeking to implement a disaster plan for their law firm.

The opinion addressed a host of different ethical issues faced by lawyers following a disaster in regard to both existing and potential clients. What follows is a summary of some of their recommendations, most of which relate to existing clients.

At the outset, the Committee explained the reason that lawyers must engage in disaster planning: “Lawyers have an ethical obligation to implement reasonable measures to safeguard property and funds they hold for clients or third parties, prepare for business interruption, and keep clients informed about how to contact the lawyers (or their successor counsel).”

Next, the Committee focused on the importance of ensuring an open line of communication with clients, even in the midst of a natural disaster. The Committee emphasized that part of disaster preparedness entails ensuring that client contact information will be readily available after a disaster hits, and that storing information electronically where it is easily accessible 24/7 is often a important part of making that happen: “One of the early steps lawyers will have to take after a disaster is determining the available methods to communicate with clients. To be able to reach clients following a disaster, lawyers should maintain, or be able to create on short notice, electronic or paper lists of current clients and their contact information. This information should be stored in a manner that is easily accessible.”

The value of online storage, typically in the cloud, was repeatedly stressed throughout the opinion. The Committee explained that exploring these options and choosing the right provider are important steps to take as part of disaster preparedness: “(L)awyers must evaluate in advance storing files electronically so that they will have access to those files via the Internet if they have access to a working computer or smart device after a disaster. If Internet access to files is provided through a cloud service, the lawyer should (i) choose a reputable company, and (ii) take reasonable steps to ensure that the confidentiality of client information is preserved, and that the information is readily accessible to the lawyer.”

The Committee also offered the following guidelines for law firms creating a disaster plan:

Lawyers should check with the courts and bar associations in their jurisdictions to determine whether deadlines have been extended.Lawyers also must take reasonable steps in the event of a disaster to ensure access to funds the lawyer is holding in trust.lawyers should take appropriate steps in advance to determine how they will obtain access to their accounts after a disaster.Lawyers whose circumstances following a disaster render them unable to fulfill their ethical responsibilities to clients may be required to withdraw from those representations.To prevent the loss of files and other important records, including client files and trust account records, lawyers should maintain an electronic copy of important documents in an off-site location that is updated regularly.(Lawyers) must notify current and former clients of the loss of documents with intrinsic value, such as original executed wills and trusts, deeds, and negotiable instruments.

Finally, the Committee concluded the opinion with these words of advice: “Lawyers must be prepared to deal with disasters. Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds, and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.”

You never know when a disaster may strike. Whether it’s a fire, flooding, or other unexpected occurrence, planning is key. Is your firm ready for a disaster? It not, there’s no better time than now to start planing, and reading this opinion in its entirety is a great place to start.

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from August and September 2018:

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Technology know-how: bridging the gap

By now, I’m sure you already know that New York lawyers have an ethical obligation to maintain technology competence. What that means is that you need to have a basic understanding of legal technology issues so that you can make educated decisions about whether to use technology in your law practice, and which tools to use.

Of course, we all know that’s easier said than done. After all, you’re already incredibly busy representing clients, meeting deadlines, staying on top of changes in your practice areas, and running your law firm. How are you supposed to learn about the latest in technology, especially when changes are occurring at such a rapid clip?

The good news is that it can be done. But it’s going to take some dedication and effort on your part. The key is to incorporate learning about technology into your daily routine. This will allow you to spend just a few minutes each day educating yourself, rather trying to frantically learn all that you can in a single CLE session each year.

Obviously, the latter option is a horrible strategy for any number of reasons. So instead, take the time to incorporate legal tech learnings into the beginning or end of each workday. Here are some ideas to help you do just that.

First and foremost, take advantage of your local bar association’s resources. For Monroe County lawyers, make sure to join the Monroe County Bar Association’s Technology and Law Practice Committee, which I happen to chair. We meet every third Tuesday at 12:15 and a free lunch is provided, so what have you got to lose? During our meetings you’ll learn about the latest legal technology news and tips, and will also hear from a different nationally recognized expert during each meeting who will answer your legal technology questions remotely via GoToMeeting. If you can’t make a particular meeting, never fear, you can log in remotely via GoToMeeting to hear that month’s guest Q & A and can even ask questions and participate. Make sure to join the committee or contact the bar to get on the mailing list so that you’ll always receive the monthly email with the GoToMeeting link.

Next, If you’re not already reading a few legal technology blogs each day, now is the time to start. The trick is knowing which blogs to read, since there are so many blogs out there. One option to consider is a new global legal news network site from Lexblog This site curates legal blog posts from around the world and offers a multitude of channels on a host of legal topics, including a technology channel, a privacy and data security channel, and a law firm marketing and management channel. And, for even more legal technology blog recommendations, check out this post.

And last but not least, subscribe to a few podcasts. Here are a few that focus on legal tech issues that are worth considering: 1) LawNext – Bob Ambrogi interviews legal technology entrepreneurs and innovators, 2) This Week in Law – Denise Howell and her colleagues and guests discuss the latest issues in technology law, 3) The Law Entrepreneur – Neil Tyra and his guests focus on the business of law, including using technology in law firms, 4) Law Firm Autopilot – Ernie Svenson covers the ins and outs of legal technology and law practice management, 5) The Geek in Review – Marlene Gebauer and Greg Lambert talk about emerging issues in legal information and knowledge management.So now that you know about all of these free resources, you’ve got no excuse; it’s time to get up to speed on legal technology. So pick your poison, dive in, and start learning. Trust me, you won’t regret it.

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Juror misconduct and technology: a perfect storm

As I mentioned in recent columns, I’m in the process of drafting my half of the annual update to “Criminal Law in New York,” a substantive criminal law treatise that I co-author with Brighton Town Court Judge Karen Morris. Every year, during the course of my research, I often stumble upon cases that offer an interesting perspective on the intersection of law and technology. This year was no different, and one particularly timely issue that I encountered involved juror misconduct occurring due to the improper use of technology by jurors.

Oftentimes these types of cases are discussed in the context of jurors using social media platforms to discuss trial proceedings despite being instructed not to do so, but the two cases that caught my eye while researching cases this summer involved jurors improperly using other types of technology in ways that were alleged to have had an impact on criminal trials.

In this column I’ll discuss the first case, People v. Neulander, 162 A.D.3d 1763 (4th Dep’t 2018), where the defendant was convicted of murder in the second degree. One issue on appeal was whether a number of text messages sent by a juror during the trial to friends and family constituted juror misconduct that created a significant risk that a substantial right of defendant was prejudiced.

Specifically, as established during the hearing on the defendant’s motion to set aside the verdict, the juror in question sent the following text messages to her father and her friends during the trial:

(A) text message from her father that stated: “Make sure he's guilty!” During the trial, juror number 12 received a text message from a friend asking if she had seen the “scary person” yet. Juror number 12 responded: “I've seen him since day 1.” Juror number 12 admitted at the subsequent hearing into her misconduct that she knew that the moniker “scary person” was a reference to defendant. Another friend sent juror number 12 a text message during the trial that stated: “I'm so anxious to hear someone testify against Jenna [defendant's daughter].” Juror number 12 responded: “No one will testify against her! The prosecution has already given all of his witnesses, we are on the defense side now! The prosecutor can cross examine her once she is done testifying for the defense.” Later that night, the same friend replied via text message: “My mind is blown that the daughter [Jenna] isn't a suspect.”

This conduct was reported to the court by an alternate juror after the guilty verdict had been rendered. In the juror’s affidavit in opposition to the motion to set aside the verdict, the juror stated that she had followed all of the court’s instructions. Nevertheless, a subsequent forensic examination of her cell phone showed that she had deleted many messages and erased her web browsing history, and she was unable to provide any explanations for doing so.

Based on the evidence adduced at the hearing, the court granted the defendant’s motion for a new trial, concluding that “due to juror number 12's flagrant failure to follow the court's instructions and her concealment of that substantial misconduct, defendant, through no fault of his own, was denied the opportunity to seek her discharge during trial on the ground that she was grossly unqualified and/or had engaged in substantial misconduct…thus…(the) defendant established by a preponderance of the evidence that juror number 12 engaged in substantial misconduct that ‘created a significant risk that a substantial right of ... defendant was prejudiced.”

This case is a great example of the reality that even tools as familiar and simple as texting can have a significant impact on trials. So don’t make the mistake of discounting or overlooking the potential effect of “old school” technology on your client’s case.

In next week’s column, I’ll discuss a juror misconduct case whereby jurors conducted legal research on their home computers and also used video editing software to enhance images from a video in evidence. So make sure to tune in next week!

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from July 2018:

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Lawyers should be concerned about a new Gmail security issue: here’s how to fix it

If you’ve been reading my column over the years, you already know that unencrypted email is inherently unsecure and that it’s no different than sending a postcard written in pencil through the post office. Despite this fact, in the mid-1990s, bar ethics committees, including the New York State Committee on Professional Ethics, gave lawyers the green light to use email for confidential client communications.

Of course, as I’ve explained many times before, as technology changes, so too do expectations regarding security and the ethical duty to maintain confidentiality. As a result, email is slowly falling out of favor as an accepted method of secure attorney/client communication. The most recent evidence of this trend was the issuance of Formal Opinion 477 by the American Bar Association last year, wherein the Ethics Committee concluded that unencrypted email may not always be sufficient for client communication.

More recently, in early July, news reports revealed that emails sent and received by Gmail users can sometimes be read by third party apps and their developers - not just machines. The reason this matters is because it was previously believed that the emails of people who used the free version of Gmail email were only scanned by machines in order to serve up relevant ads.

This newfound revelation is an important one for New York lawyers who use the free version of Gmail (as opposed the paid version - GSuite - which doesn’t serve up ads to users, and thus emails aren’t scanned by Google). This is because the scanning of emails to provide ads was determined to be permissible by the New York State Bar Association in 2008, when the Committee on Professional Ethics concluded that since the contents of emails were being processed by a machine, not a person, for the limited purpose of serving up relevant content, it was ethically permissible to use Gmail for confidential client communications. (New York State Bar Association’s Committee on Professional Ethics Opinion 820-2/08/08).

In other words, if you’re using the free version of Gmail to communicate with clients, and have knowingly or unknowingly granted third party apps access to your Gmail account, you may now be violating your ethical obligation to maintain client confidentiality. And, on the flip side, even if you haven’t granted access to third party apps, if any of your clients use the free version of Gmail, it’s possible that they’ve done so and are now allowing third parties to view confidential email communications.

So if you or your clients use the free version of Gmail, you’ll need to take steps to ensure that your communications are secure. One way to accomplish this goal is to choose a different method of communication altogether. Since unencrypted email is inherently unsecure, regardless of the email provider, why not switch to secure client portals instead? Client portals, which are often built into law practice management software, provide a secure and efficient way for lawyers to communicate and collaborate with clients. With client portals, the cumbersome back and forth process of unsecure, threaded emails is a thing of the past and is instead replaced by the ability to securely communicate in an encrypted, controlled online environment.

Alternatively, switch to the paid version of Gmail, GSuite, or lock your free version down, and ask your clients do the same. If your choice is the latter, you’ll need to head over to Google’s Security Check-up page (online: https://myaccount.google.com/security-checkup/3) and revoke the access that any third party apps may have to your account. Your clients will need to do the same.

Regardless of the path that you take, keep in mind that as a New York attorney, you have an ethical duty to maintain technology competence. And, ensuring that the technologies that you use to communicate with clients are secure is an important part of that obligation. It’s not always easy to find the time to learn about new and emerging technologies, but it’s important that you do so. Make it a priority to learn something new each day, whether it’s from blogs, books, or CLEs.

Like it or not, taking steps to understand technology is now part of practicing law in the 21st century. The good news is that at the end of the day, maintaining technology competence will make you a better, more informed, and more efficient attorney.

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from June 2018:

The phenomenon of social media has infiltrated all aspects of our lives, so it’s not surprise that social media evidence is now a pivotal tool in litigation. Juror use of social media has resulted in mistrials across the country for more than a decade now. And trial attorneys are increasingly mining social media for evidence and researching jurors online.

Not surprisingly, the rising practice of using social media information during litigation caught the attention of ethics committees some years ago, and the first opinion on this issue was handed down in 2009. Since then, I’ve regularly covered these opinions in this column, and recently realized that I’d overlooked one that was issued by the Maine Bar’s Professional Ethics Commission last November: Opinion 217

In the opinion, the Commission addressed both the ethics of mining social media for evidence and researching jurors online. Another issue covered was whether lawyers may connect with judges or quasi-judicial officers on social media sites.

At the outset, the Commission acknowledged that defining social media is a difficult task, since “(t)he functionality, technology and content available on the platforms that make up “social media” likely will continue to evolve dramatically in the future.” Even so, it attempted to offer a rather broad definition, defining social media networks as sites that “are used primarily for connecting socially with multiple ‘friends’ and for sharing a wide range of personal, professional and editorial information using text, links, photographs and video,” while specifically excluding sites that “lack the type of sharing of non-public information with ‘friends’ selected by the profile holder, which characterizes social media platforms.”

Next the Commission turned to using social media to obtain evidence for a pending case. The Commission sided with the majority of other jurisdictions in concluding that all publicly viewable social media information is fair game and may be viewed without issue. But for unrepresented parties, data found behind a privacy wall may only be accessed if attorneys or their agents, when making the connection request, “affirmatively disclose the purpose of the contact.” Represented parties were a different story, and all private information found behind the privacy wall was found to be off limits since any attempt to connect in order to access that information constitute impermissible communications with a represented party.

The Commission also sided with the majority of jurisdictions on the issue of whether passive notifications (like those sent by LinkedIn when someone views a user’s profile) sent by social networks to jurors constituted an impermissible communication. Like the American Bar Association Committee and the DC Bar Committee (and in contrast to the position taken by the New York State Bar Committee), the Commission concluded that only publicly viewable information could be accessed and that passive notifications to jurors sent by social media sites did not constitute impermissible ex parte communications since “any other approach would be unworkable as a practical matter and would subject attorneys to potential ethics violations based upon the happenstance of user settings or new technologies that generate automated messages outside of the attorney’s reasonable knowledge or control.” However, the Commission cautioned that “where an attorney knows or reasonably should know that accessing any social media of a juror will result in such juror becoming aware of the attorney’s access, the attorney should refrain from accessing that social media, (and) (i)f the attorney learns that any juror…has become aware of (it), the attorney must notify the Court…(which) may find it advisable to provide a cautionary instruction…”

Finally the Commission weighed in on lawyers connecting with judges online: “Attorneys are permitted to connect with judges and other judicial officers through social media, but they are precluded from having ex parte communications with, or from attempting to impermissibly influence, such judges or judicial officers through social media.” Once again, this was in line with the position taking by most other jurisdictions on this issue.

As more jurisdictions address these issues, commonalities arise in the analysis and conclusions reached. In this case, the Commission wisely acknowledged the rapid pace of technological advancement and incorporated that concept into the context of its determinations. Hopefully committees in jurisdictions that have not yet addressed these issues will follow suit, since guidelines on ethical use of technology that have flexibility built in are more likely to withstand the test of time.

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